In this chapter 13 case, the court applied the same factors previously recognized by the Eighth Circuit for determining good faith under § 1307(c) and § 1325(a)(3) to § 1325(a)(7). Because the objecting creditor failed to produce sufficient evidence to support her motion to reconvert and many of her substantive objections, the court denied her motion and overruled all but two of her objections to confirmation, which related to a domestic support claim and the debtor’s applicable commitment period.
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Opinions
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Judge Ben T. Barry
The court found that provisions of an LLC operating agreement and Arkansas statute that make the filing of a bankruptcy petition an event of disassociation are invalid and not enforceable.
The Court denied a creditor's complaint to determine the dischargeability of debt under section 523(a)(2)(B) because the creditor did not prove that the debtor possessed the requisite intent to deceive or that the creditor reasonably relied on the debtor's financial statement in extending credit.
The debtor’s former employer requested a determination of dischargeability under § 523(a)(2)(A) and § 523(a)(6) for damages arising from an alleged breach of a non-competition, non-solicitation, and confidentiality agreement signed by the debtor during employment. The Court found that the non-competition provision of the agreement was not valid, and that the employer did not provide sufficient evidence to prove that the debtor violated the remaining provisions of the agreement. Because this resulted in a finding that there was no underlying debt, the Court denied the employer’s causes of action under § 523(a)(2)(A) and § 523(a)(6).
The court granted the UST’s motion to dismiss under § 707(b)(1) after finding that the debtors’ debt was primarily consumer debt and that the debtors did not rebut the presumption of abuse that arises under § 707(b)(2).
The Court found that two separate debtors incurred a debt on account of false pretenses and actual fraud. The debt was created by a state court judgment finding that the debtors committed constructive fraud under Arkansas law. Under the doctrine of collateral estoppel, the Court was precluded from determining some, but not all, of the elements of section 523(a)(2)(A).
Judge Richard D. Taylor
Court adopts Sanderfoot precedent with regard to lien avoidance under § 522(f)(1)(A).
Audrey R. Evans
Court held that the compensation paid to attorney was unreasonable and excessive in light of the services provided, and ordered attorney to disgorge the entire amount of attorney fees paid to him for that representation. Court also found that attorney's inadequate representation and efforts to conceal those inadequacies warranted an entry of sanctions against him. Court sanctioned attorney by suspending him from practicing before the Arkansas Bankruptcy Courts pending a review and determination of the matter by the Arkansas Supreme Court’s Committee on Professional Conduct. In re Burnett, 450 B.R. 116 (Bankr. E.D. Ark. 2011).
Court held that mortgage creditor had standing to file proof of claim because even though it did not initially attach a copy of the note indorsed to it, it ultimately produced and filed the indorsed Note. Additional evidence showing the creditor had standing was a recorded assignment of mortgage listing it as the mortgage creditor filed prior the debtor's bankruptcy, and the fact that debtors listed the creditor as their mortgage creditor on their plan and schedules. The Court also found that Debtors successfully rebutted the validity and reasonableness of certain foreclosure fees charged by the mortgage creditor. In re Burrow, 2011 WL 1103354 (Bankr. E.D. Ark. March 22, 2011).